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November 22, 2005

Long sentence for software pirate affirmed by 8th Circuit

As revealed on this official opinion page, the Eighth Circuit today is back in action with more than a half-dozen criminal case dispositions that include sentencing issues. The one published decision that caught my eye is US v. Susel, No. 05-1227 (8th Cir. Nov. 22, 2005) (available here), which affirms a prison sentence of 51 months for an employee of a software manufacturer who "stole copyrighted software from his workplace, sold the software on eBay, and delivered the software to purchasers through the United States mails."

The opinion in Susel is focused on various technical guideline calculations issues, though I am intrigued by the broader story of this particular defendant getting such a long sentence for software piracy. Notably, in this Senate testimony last year, Assistant AG Chris Wray bragged about major software pirates having "received prison sentences of between 33 to 50 months, the longest sentences ever imposed for Internet copyright piracy at the time." Similarly, this post at White Collar Crime Prof Blog notes a press release from earlier this year which brags that a major software pirate received a sentence of three years' probation.

Because the defendant in Susel does not seem like a major software pirate, I cannot help but ponder whether his sentence of 51 months' imprisonment complies with the statutory mandate in 3553(a) that the district judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in" the Sentencing Reform Act. Also, what of the statutory obligation, detailed in 3553(a)(6), to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"? I had hoped these sorts of issues would become the focal point of post-Booker sentencing decisions, but Susel suggests that the guidelines' diktats will continue to dominate sentencing decision-making even in a post-Booker world.

UPDATE: Ellen Podgor over at the White Collar Crime Prof Blog here provides more commentary on this case and notes a 37-month sentence in another (more serious?) software piracy case out of New York.